Hi everyone,
Welcome to the latest edition of our Tech Ticker! As the pandemic continues to rage, we hope you’re staying safe.
An engaging line up of webinars kept us busy in May. Aparajita and Vijayant walked us through potential challenges and opportunities in digital lending in a post pandemic India, together with Uday Somayajula, co-founder, ePayLater (blog). Tanya and Sreenidhi unpacked the telemedicine practice guidelines with Guriqbal Singh Jaiya, co-author of Fundamentals of Telemedicine and Telehealth, 2019 and Dr. Manuj Garg, co-founder, myUpchar.com (blog). For e-commerce enthusiasts, Nehaa talked about GST issues faced by the Indian e-commerce industry with Rajat Mittal, AOR, Supreme Court of India. Anirudh explored the opportunities and challenges of building an outer space business with Awais Ahmed, CEO, Pixxel. Yash Dholakia, principal, Tomorrow Capital, an operator venture capital fund, explored the mindset of an operator and a typical venture capitalist in terms of the deal identification process, valuation, due diligence and deal terms with Anirudh and Ishita. Nehaa and Anirudh discussed EU competition law and regulatory responses to platforms and data regulation with Ajinkya Tulpule, senior legal counsel, Ferrero, Luxembourg (blog). Nehaa and Aman conversed with Neha Mishra, Postdoctoral Fellow at Centre for International Law, NUS, on how international trade law framework deals with data. Anirudh explored blockchain forensics and due diligence with Mriganka Pattnaik, CEO, Merkle Science (blog). Drawing from our experience in the cryptocurrency litigation, Tanya and Anirudh discussed the art of strategic litigation with Nakul Dewan, Senior Advocate, Supreme Court and Barrister at Essex Street and Vrinda Bhandari, Advocate, Supreme Court.
Equally as active was our blog. In a special three part blog series, Sayanhya explored the business of cloud kitchens in India (read about models at play; negotiating a lease contract to operate a cloud kitchen; and key contractual terms for a shared cloud kitchen). Continuing our series on data protection law and policy in the APAC region, we wrote about the data governance framework for Vietnam and Japan (earlier pieces in this series, here). With the pandemic wrecking the sales of alcohol and increased demand for liquor e-commerce, Aman discussed the best suited model for online sale and home delivery of liquor . Arpit analysed the impact of zero MDR on the digital payment industry’s revenue model in India. Rajat wrote on OECD’s unified approach on digital tax, while Varun authored lessons from Ethiopia on hate speech legislation and disinformation.
Now, on to other news.
Spotlight
Prime Minister Modi’s clarion call of an Atmanirbhar Bharat evoked much enthusiasm. Nirmala Sitharaman, the union Finance Minister announced details of this program in five tranches, namely steps for the MSME sector, coal, aviation, defence, migrant and urban poor and agriculture. Pertinently, the government has disallowed foreign companies from bidding for government tenders up to INR 200 crore. For now, confusion looms around whether local subsidiaries of global companies incorporated in India will be hit by this decision. The government also wants to open up the space sector to private players by allowing them to build satellites, undertake launches and provide space-based services. It also announced that a ‘liberal’ geo-spatial data use policy for providing remote sensing data to tech entrepreneurs will be introduced.
Meanwhile, MeitY released a request for proposals to empanel new cloud service providers for the government. Previously, such an RFP was notified in 2017 with several additional requirements being released in 2019. Many of these additional requirements find place in the new iteration of the RFP.
In other important news, regular parliamentary committee meetings may resume soon. However, this may be restricted to permanent committee meetings and not cover the Joint Parliamentary Committee reviewing the Personal Data Protection Bill, 2019. Various MPs expressed their reluctance to travel to attend meetings.
Digital payments
Digital payments were seen to be closely intertwined with anti-trust concerns. The Supreme Court directed the Reserve Bank of India and the National Payments Corporation of India to submit WhatsApp Pay’s data localisation compliance status. On the flipside, WhatsApp committed that its payment business will comply with localisation rules by May, 2020. Additionally, the Competition Commission of India is reviewing a complaint against WhatsApp for bundling its payment services within its messaging app, allegedly abusing its market position to enter India’s booming digital payments market. Also, the CCI is scrutinising a complaint against Google for allegedly abusing its dominant position to unfairly promote Google Pay. Meanwhile, the NPCI asked Indian digital payment platforms to provide a system audit report to assess their compliance with the RBI’s payment data localisation norms.
E-commerce and digital tax
Reports suggest that the Department for Promotion of Industry and Internal Trade will soon release the draft national e-commerce policy in for public comments. This comes after it was reported that the policy was put on hold due to COVID-19 and other economic challenges. Separately, nine foreign industry groups/associations jointly wrote to the Indian government asking for a nine-month postponement of the implementation of the newly introduced 2% digital tax. The US government also raised concerns over the 6% equalisation levy introduced in the Finance Bill, 2020. Reports suggest that the 2% equalisation levy applicable to non-resident e-commerce companies (effective from 01 April 2020) may be deferred to the second financial quarter of 2020-2021.
Health-tech and privacy
The central government launched Aarogya Setu Mitr which offers free telemedicine consultations for people with COVID-19 symptoms and doorstep delivery of medicines. This saw the South Chemists & Distributors Association move the Delhi High Court alleging that the portal acted as a marketing tool for e-pharma services. Additionally, opposition leaders in Kerala dragged the state to the High Court for breaching the privacy of 1.75 lakh people by sharing their COVID-19 related data with Sprinklr (a US based tech firm) without seeking consent. Soon after the Kerala government released a set of data protection guidelines for collection of COVID-19 related health data by government departments/agencies (our analysis, here.) In an attempt to address the privacy concerns in the Aarogya Setu app, the Ministry of Electronics and Information Technology released the Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020 to ensure responsible use of data collected through the application (summary). Going a step further, the government made the source code of the app public allowing researchers and cybersecurity experts to audit the app for any bug/flaws. Providing some relief to employers, the Ministry of Home Affairs diluted the mandatory nature of the Aarogya Setu app, instructing employers to have the app downloaded by their employees on a best effort basis. Earlier, the Ministry of Civil Aviation and the Airports Authority of India issued SOPs mandating fliers to download the app, which Hardeep Puri later clarified, was not mandatory and that a self-declaration instead would suffice. The Ministry of Railways in a tweet mandated the download of the app. However, the order released by the Ministry of Health and Family Welfare permitting the movement of trains was silent on the issue.
Intermediary liability
After committing to constitute a body to moderate content on Facebook and Instagram in 2018, the social media giant recently announced the first twenty of the forty members of its independent oversight board including Sudhir Krishnaswamy, Vice Chancellor, NLSIU, Bangalore. In other news, Twitter labelled Donald Trump’s tweets insinuating that ‘mail-in ballots’ led to voter fraud, as ‘potentially misleading’. This triggered the White House to pass an executive order aimed at diluting the protection afforded to online platforms for content posted by third parties under section 230(c) of USA’s Communications Decency Act, 1996. The order was claimed to be a ‘clear piece of political theatre’ and an attempt to punish social media companies for posts that displeased the US president. Interestingly, Mark Zuckerberg said that online platforms like Facebook should not be ‘arbiters of truth’ of what people say online. He also refused to take down the Facebook and Instagram versions of Tweets encouraging police to shoot rioters, which saw Facebook employees stage ‘virtual walkouts’ to publically display dissatisfaction with the decision.
Online content
A bureaucratic reshuffle saw Amit Khare being reinstated as the Secretary of the Ministry of Information and Broadcasting, while retaining his existing position as the Secretary of the Department of Higher Education, Ministry of Human Resource Development. Further, Tarun Katial, CEO ZEE5 India was appointed as the chairman of the Digital Entertainment Committee at the Internet and Mobile Association of India. Both Amit Khare and Tarun Katial have been vocal proponents of a self-regulatory model for video streaming platforms. Looking to improve the social media outreach of various ministries and departments of the government, the MIB released policy guidelines for the empanelment of social media platforms with the Bureau of Outreach and Communication, Ministry of Information and Broadcasting.
That’s all from us this month! See you again in July!
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